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Appeal No. 18-16663
IN THE

United States Court of Appeals for the Ninth Circuit
_____________
CITY OF OAKLAND and CITY AND COUNTY OF SAN FRANCISCO,
Plaintiffs-Appellants,
v.
B.P. PLC, CHEVRON CORPORATION, CONOCOPHILLIPS,
EXXON MOBIL CORPORATION,
ROYAL DUTCH SHELL PLC, and DOES 1 through 10,
Defendants-Appellees.

_____________

On Appeal from the United States District Court
Northern District of California
Case Nos. 3:17-cv-06011-WHA, 3:17-cv-06012-WHA
Hon. William H. Alsup

_____________

BRIEF OF NATURAL RESOURCES DEFENSE COUNCIL
AS AMICUS CURIAE
IN SUPPORT OF APPELLANTS AND REVERSAL
Ian Fein
Natural Resources Defense Council
111 Sutter Street, 21st Floor
San Francisco, CA 94104

Peter Huffman
Natural Resources Defense Council
1152 15th Street NW, Suite 300
Washington, D.C. 20005
(202) 289-2428
Counsel for Amicus Curiae

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CORPORATE DISCLOSURE STATEMENT
Under Federal Rule of Appellate Procedure 26.1, Amicus Curiae
Natural Resources Defense Council, Inc., certifies that it is a non-profit
environmental and public health membership organization that has no
publicly held corporate parents, affiliates, and/or subsidiaries.

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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT ............................................ i
TABLE OF AUTHORITIES .................................................................... iii
INTEREST OF AMICUS CURIAE ........................................................... 1
SUMMARY OF ARGUMENT ................................................................... 5
ARGUMENT ............................................................................................. 8
I.

Federal common law does not completely preempt
Plaintiffs’ claims........................................................................... 10
a. Congressional legislation defines the substance of
federal law to the exclusion of federal common law. .............. 11
b. The Clean Air Act defines the substance of federal law
concerning air pollution........................................................... 13
c. There is no unique federal interest in climate change that
completely preempts state law. ............................................... 19

II.

The Clean Air Act does not completely preempt
Plaintiffs’ claims........................................................................... 23
a. The Clean Air Act does not expressly preempt
all state law climate claims. .................................................... 25
b. The Clean Air Act does not preempt the field
of climate regulation................................................................ 27
c. State law climate claims do not inherently conflict
with the Clean Air Act............................................................. 30

CONCLUSION ........................................................................................ 33

ii

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TABLE OF AUTHORITIES

Cases
Altria Grp. v. Good,
555 U.S. 70 (2008) ................................................................................ 29
Am. Elec. Power Co. v. Connecticut,
564 U.S. 410 (2011) ...................................................................... passim
Am. Fuel & Petrochemical Mfrs. v. O’Keeffe,
903 F.3d 903 (9th Cir. 2018) ........................................................ passim
Beneficial Nat’l Bank v. Anderson,
539 U.S. 1 (2003) .................................................................................... 9
California v. ARC America Corp.,
490 U.S. 93 (1989) ................................................................................ 30
Caterpillar Inc. v. Williams,
482 U.S. 386 (1987) ...................................................................... passim
Chevron U.S.A., Inc. v. Hammond,
726 F.2d 483 (9th Cir. 1984) ................................................................ 31
Chinatown Neighborhood Ass’n v. Harris,
794 F.3d 1136 (9th Cir. 2015) .............................................................. 32
City of Milwaukee v. Illinois & Michigan,
451 U.S. 304 (1981) ...................................................................... passim
Close v. Sotheby’s, Inc.,
909 F.3d 1204 (9th Cir. 2018) ................................................................ 5
English v. Gen. Elec. Co.,
496 U.S. 72 (1990) ................................................................................ 27
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Exxon Mobil Corp. v. U.S. E.P.A.,
217 F.3d 1246 (9th Cir. 2000) ...................................................... passim
Felix v. Volkswagen Grp. of Am., Inc.,
2017 WL 3013080 (N.J. Super. Ct. App. Div. July 17, 2017),
appeal denied, 177 A.3d 109 (N.J. 2017) ............................................. 21
Fla. Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132 (1963) .............................................................................. 30
Franchise Tax Bd. of State of Cal. v.
Constr. Laborers Vacation Trust for S. Cal.,
463 U.S. 1 (1983) .................................................................................... 5
Georgia v. Tennessee Copper Co.,
206 U.S. 230 (1907) ........................................................................ 10, 11
Hansen v. Grp. Health Coop.,
902 F.3d 1051 (9th Cir. 2018) ................................................................ 9
Illinois v. City of Milwaukee, Wis.,
406 U.S. 91 (1972) .......................................................................... 11, 18
In re Methyl Tertiary Butyl Ether (MTBE) Products Liab. Litig.,
725 F.3d 65 (2d Cir. 2013) .................................................................... 28
In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Products
Liab. Litig., 895 F.3d 597 (9th Cir. 2018) ............................................ 21
In re Volkswagen “Clean Diesel” Mktg., Sales Practices, & Products
Liab. Litig., 349 F.Supp.3d 881 (N.D. Cal. 2018) ................................ 26
International Paper Co. v. Ouellette,
479 U.S. 481 (1987) .............................................................................. 13
Medtronic, Inc. v. Lohr,
518 U.S. 470 (1996) ................................................................................ 8

iv

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Merrick v. Diageo Americas Supply, Inc.,
805 F.3d 685 (6th Cir. 2015) ................................................................ 30
Missouri v. Illinois,
180 U.S. 208 (1901) .............................................................................. 11
Murphy v. Nat’l Collegiate Athletic Ass’n,
138 S. Ct. 1461 (2018) .............................................................. 10, 23, 24
Nat’l Audubon Soc. v. Dep’t of Water,
869 F.2d 1196 (9th Cir. 1988) .............................................................. 22
Native Village of Kivalina v. ExxonMobil Corp.,
696 F.3d 849 (9th Cir. 2012) ........................................................ passim
Natural Res. Def. Council, Inc. v. U.S. E.P.A.,
638 F.3d 1183 (9th Cir. 2011) .............................................................. 29
O’Melveny & Myers v. F.D.I.C.,
512 U.S. 79 (1994) ................................................................................ 20
ONEOK, Inc. v. Learjet, Inc.,
135 S. Ct. 1591 (2015) .......................................................................... 30
Oxygenated Fuels Ass’n v. Davis,
331 F.3d 665 (9th Cir. 2003) ........................................................ passim
Patriotic Veterans, Inc. v. Indiana,
736 F.3d 1041 (7th Cir. 2013) .............................................................. 30
People v. ConAgra Grocery Prod. Co.,
227 Cal. Rptr. 3d 499 (Cal. Ct. App. 2017),
cert. denied, 139 S. Ct. 377 (2018).......................................................... 8
Rocky Mountain Farmers Union v. Corey,
913 F.3d 940 (9th Cir. 2019) ................................................................ 21
Silkwood v. Kerr-McGee Corp.,
464 U.S. 238 (1984) .......................................................................... 8, 28
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Sprietsma v. Mercury Marine,
537 U.S. 51 (2002) ................................................................................ 30
Stengel v. Medtronic Inc.,
704 F.3d 1224 (9th Cir. 2013) .............................................................. 32
Texas Indus., Inc. v. Radcliff Materials, Inc.,
451 U.S. 630 (1981) ........................................................................ 10, 20
W. Virginia ex rel. Morrisey v. McKesson Corp.,
2017 WL 357307 (S.D. W. Va. Jan. 24, 2017) ...................................... 21
Wis. Pub. Intervenor v. Mortier,
501 U.S. 597 (1991) .............................................................................. 29
Wyeth v. Levine,
555 U.S. 555 (2009) .................................................................. 27, 29, 30
Statutes
29 U.S.C. § 1144(a) .................................................................................. 25
33 U.S.C. § 1251 ...................................................................................... 12
42 U.S.C. § 7401(a)(3).............................................................................. 28
42 U.S.C. § 7407 ...................................................................................... 28
42 U.S.C. § 7416 .......................................................................... 24, 29, 30
42 U.S.C. § 7507 ...................................................................................... 26
42 U.S.C. § 7543(a) .................................................................................. 26
42 U.S.C. § 7543(b) .................................................................................. 26
42 U.S.C. § 7543(e)(2) .............................................................................. 26
42 U.S.C. § 7545(c)(4) .............................................................................. 26
42 U.S.C. § 7573 ...................................................................................... 26
42 U.S.C. § 7604(e) ...................................................................... 25, 29, 30

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Other Authorities
Abt Associates, Analysis of the Public Health Impacts of the Regional
Greenhouse Gas Initiative, 2009-2014 (Jan. 2017),
https://www.abtassociates.com/insights/publications/report/analysisof-the-public-health-impacts-of-the-regional-greenhouse-gas-0……...22
California’s Fourth Climate Change Assessment (2018),
http://www.climateassessment.ca.gov/ .................................................. 3
Fourth National Climate Assessment (2018), vol. II,
https://nca2018.globalchange.gov/ ................................................... 2, 22
N.Y. Att’y Gen., Press Release, A.G. Underwood Announces $68 Million
Multistate Settlement With UBS AG (“UBS”) For Artificially
Manipulating Interest Rates (Dec. 21, 2018),
https://ag.ny.gov/press-release/ag-underwood-announces-68-millionmultistate-settlement-ubs-ag-ubs-artificially ..................................... 21

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INTEREST OF AMICUS CURIAE
Amicus Curiae Natural Resources Defense Council (NRDC) is a
non-profit environmental and public health organization with hundreds
of thousands of members. NRDC engages in research, advocacy, public
education, and litigation to protect public health and the environment.
Founded in 1970, NRDC has worked for decades ensuring enforcement
of the Clean Air Act and other laws to address major environmental
challenges.
The Clean Air Act sets a nationwide baseline for addressing air
pollution and provides federal remedies to improve air quality. But the
Act does not relieve states of the primary responsibility for protecting
the health of their residents and the quality of their air. The Act also
recognizes that each state faces its own challenges and encourages state
and local efforts that reduce air pollution.
The California plaintiffs in this case have been harmed by the
effects of climate change. Basic public infrastructure—roads, sewers,
airports—must be repaired and hardened against the rising seas and
unprecedented storms. Plaintiffs seek to avail themselves of tort law
remedies, important tools that California has long provided to address
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harms to the welfare of its residents. The court below concluded that
enforcing state law would impermissibly undermine federal authority
because climate change is a “uniquely” federal interest. NRDC strongly
disagrees that states lack a legitimate interest in addressing climate
change or that state law regulation is impermissible.
Climate change is the major environmental challenge of our time.
In November 2018, the National Climate Assessment—the collective
work product of 13 expert federal agencies—laid out in stark terms the
toll that unmitigated climate change exacts on our health and welfare:
In the absence of more significant global mitigation efforts,
climate change is projected to impose substantial damages on
the U.S. economy, human health, and the environment.
Under scenarios with high emissions and limited or no
adaptation, annual losses in some sectors are estimated to
grow to hundreds of billions of dollars by the end of the
century. It is very likely that some physical and ecological
impacts will be irreversible for thousands of years, while
others will be permanent.1

Fourth National Climate Assessment (2018), vol. II, ch. 29, The Risks
of Inaction, https://nca2018.globalchange.gov/chapter/29/.
1

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These impacts vary significantly across geographies. In California,
coastal counties “are home to 68 percent of its people, 80 percent of its
wages, and 80 percent of its GDP,” and unmitigated climate change
“will have drastic impacts along the coastline as well as for inland
flooding” and “impacts to the economy are expected to be severe.” 2
Action is urgently needed on many fronts. The current effort of the
federal government to roll back climate-protecting standards increases
the need for remedies to the ever-growing climate threat. NRDC works
extensively at the state and local level to help deploy a broad range of
effective legal, policy, and technology tools to combat all forms of
climate change pollution. From the nine-state (and counting) Regional
Greenhouse Gas Initiative that caps and reduces power sector carbon
dioxide emissions; to renewable portfolio standards that require utilities
to supply electricity from renewable sources; to limits on methane
pollution, mandates for electric vehicles, and building codes that reduce
energy waste (and carbon pollution), enforcing state law is an effective

California’s Fourth Climate Change Assessment: Statewide Summary
Report (2018), ch. 2, Climate Change Impacts in California, at 65,
available at http://www.climateassessment.ca.gov/state/docs/20190116StatewideSummary.pdf.
2

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means to help society transition to an energy system that will not harm
the climate that sustains us.
NRDC—in and out of court—has defended the enforceability of
state law against the challenge that it interferes with federal authority.
See, e.g., Am. Fuel & Petrochemical Mfrs. v. O’Keeffe, 903 F.3d 903
(9th Cir. 2018) (upholding Oregon clean fuels program from Clean Air
Act preemption and commerce clause challenges). NRDC submits this
brief to highlight why state law—both statutory and common law—
remains available to address harms produced by climate change. 3

All parties have consented to the filing of this brief. No party or party’s
counsel has authored this brief in whole or in part or contributed money
that was intended to fund preparing or submitting the brief. No person
or entity, other than amicus, has contributed money that was intended
to fund preparing or submitting the brief.
3

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SUMMARY OF ARGUMENT
States have the right and the responsibility to protect the health,
safety, and welfare of their residents. To that end, states can provide a
range of legal remedies—both statutory and common law—that they
deem appropriate. California has authorized local officials to bring
abatement actions against defendants who create public nuisances.
This state law remedy is enforceable unless preempted by federal law.
Close v. Sotheby’s, Inc., 909 F.3d 1204, 1209 (9th Cir. 2018).
Importantly, whether federal law preempts California nuisance
law is not a question that must be answered in a federal court. Here, in
fact, it is question that cannot be answered in federal court. Plaintiffs
pled only a California state law nuisance claim and filed their complaint
in state court. Even if federal preemption could ultimately provide a
defense to that claim, it does not provide federal jurisdiction to remove
the case from state court. Franchise Tax Bd. v. Constr. Laborers
Vacation Tr. for S. Cal., 463 U.S. 1, 14 (1983).
The district court erred in accepting removal. Absent an express
congressional grant of removal jurisdiction, removal is available only in
the “extraordinary” event of “complete preemption.” Caterpillar Inc. v.
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Williams, 482 U.S. 386, 393 (1987). “Complete preemption refers to the
situation in which federal law not only preempts a state-law cause of
action, but also substitutes an exclusive federal cause of action in its
place.” Hansen v. Grp. Health Coop., 902 F.3d 1051, 1057 (9th Cir.
2018). The district court here accepted removal jurisdiction on the basis
that federal common law “necessarily governs” Plaintiffs’ nuisance
claims. But the court then subsequently held that no federal common
law cause of action exists. This latter holding confirms the error in the
former: Without a federal cause of action to substitute for the state-law
nuisance claims, complete preemption does not exist; and without
complete preemption, the state law actions are not removable.
More fundamentally, federal law does not preempt—much less
completely preempt—any and all state law claims solely because the
claims are brought to address harms related to climate change. The
district court characterized Plaintiffs’ claims as seeking to solve climate
change by regulating greenhouse gas emissions through state nuisance
law. Plaintiffs fairly dispute that characterization, as they seek only an
order for Defendants to bear costs of abating localized impacts. But
even so construed, under this Court’s decision in Native Village of
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Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012) (“Kivalina”),
no relevant federal common law exists to preempt Plaintiffs’ claims
because federal common law has been displaced by the Clean Air Act.
Plaintiffs’ state law claims are thus presumptively available unless
preempted by that Act. See Am. Elec. Power Co., Inc. v. Connecticut,
564 U.S. 410, 429 (2011) (“AEP”). And the Clean Air Act does not
preempt all state law climate claims. No court has ever so held, and the
Act expressly preserves states’ broad traditional authority to address
air pollution under state law. Oxygenated Fuels Ass’n v. Davis, 331 F.3d
665, 670-71 (9th Cir. 2003) (“OFA”).
To be sure, federal action is needed on climate change. And some
remedies can be provided exclusively by federal law. But that does not
preempt all state remedies. See Caterpillar, 482 U.S. at 393-95. Climate
change is not a concern unique to the federal government and federal
remedies are not the exclusive means to address it. State remedies are
both necessary and effective. California provides a nuisance remedy and
Plaintiffs are entitled to the opportunity to prove a claim for relief in
state court.

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ARGUMENT
“States are independent sovereigns in our federal system,”
Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996), and possess the
“traditional authority to provide tort remedies” as they deem
appropriate, Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984).
California provides a tort remedy for nuisances. See People v. ConAgra
Grocery Prods. Co., 227 Cal. Rptr. 3d 499, 514 (Cal. Ct. App. 2017),
cert. denied, 139 S. Ct. 377 (2018) (nuisance action against lead paint
manufacturers).
Plaintiffs here allege that Defendants have long known that the
continued burning of fossil fuels would cause significant climate-related
harms. Plaintiffs contend that Defendants deliberately concealed that
knowledge while continuing to wrongfully promote the unrestrained use
of their fossil fuel products. Plaintiffs claim this wrongful promotion
gives rise to liability under California nuisance law.
Plaintiffs are entitled the opportunity to prove that claim in
California state court. Under the “well-pleaded complaint rule,”
Plaintiffs are masters of their claim and “may avoid federal jurisdiction
by exclusive reliance on state law.” Caterpillar, 482 U.S. at 392.
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Plaintiffs filed this action in state court and exclusively pled a
California law nuisance claim. This action thus can only be removed to
federal court in the “extraordinary” event of “complete preemption”—
where existing federal law both preempts California nuisance law and
provides a substitute federal cause of action. Id. at 393; see also
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003); Hansen, 902
F.3d at 1057. Such extraordinary preemption is not present here.
As explained below, California nuisance law is not completely
preempted by federal law simply because the state claims are brought
to address harms related to climate change:
First, federal common law does not completely preempt state law
climate claims. Federal common law does not govern the wrongful
promotion of fossil fuels, and under Kivalina, any federal common law
addressing harms from interstate air pollution no longer exists:
Congress displaced it with the Clean Air Act, and this Act—not any
extinct federal common law—determines the preemptive scope of
federal law. 696 F.3d at 856-58; see AEP, 564 U.S. at 423-24, 429.
Second, the Clean Air Act does not completely preempt state law
climate claims. To the contrary, the Act, “in a number of different
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sections, explicitly protects the authority of the states to regulate air
pollution,” Exxon Mobil Corp. v. U.S. E.P.A., 217 F.3d 1246, 1254
(9th Cir. 2000), and does not regulate the promotion of fossil fuels at all.
I.

Federal common law does not completely preempt
Plaintiffs’ claims.
Plaintiffs’ state law nuisance claims are not completely

preempted—or, as framed by the district court, “necessarily governed”—
by federal common law, because no relevant federal common law exists
to preempt them.4 Although there is no general federal common law, it
exists in certain narrow areas. See Texas Indus., Inc. v. Radcliff
Materials, Inc., 451 U.S. 630, 641 (1981). Historically, the federal courts
fashioned a federal common law of interstate air pollution. See, e.g.,
Georgia v. Tennessee Copper Co., 206 U.S. 230, 237-39 (1907). However,
the Supreme Court has since held that this federal common law has
been displaced by Congress via the federal Clean Air Act. See AEP, 564

4 The

district court held that Plaintiffs’ California law nuisance claims
were “necessarily governed by federal common law.” Excerpts of Record
(“ER”) 29. Although not labeled as such, this is a preemption holding.
State law can only be “governed” by federal law, via the Supremacy
Clause, in cases of conflict between federal and state law—i.e., when
federal law has preempted state law. See Murphy v. Nat’l Collegiate
Athletic Ass’n, 138 S. Ct. 1461, 1479-80 (2018).
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U.S. at 424. Congress, not the federal courts, has primary responsibility
for setting federal policy and once Congress legislates in an area, any
preexisting federal common law “disappears.” Id. at 423 (quotation
omitted). The preemptive—or “governing”—scope of federal law thus
turns on the displacing federal statute, not the displaced federal
common law. See id. at 429.
a. Congressional legislation defines the substance of
federal law to the exclusion of federal common law.
Before enactment of the major federal environmental statutes,
federal courts adjudicated some environmental nuisance cases by resort
to a federal common law. See, e.g., Missouri v. Illinois, 180 U.S. 208, 241
(1901); Tennessee Copper Co., 206 U.S. at 237; Illinois v. City of
Milwaukee, Wis., 406 U.S. 91, 103 (1972) (“Milwaukee I”). The courts
foresaw, however, that the federal common law recognized in these
cases would be replaced by federal statutes. As the Supreme Court
observed in Milwaukee I, a water pollution nuisance case, “[i]t may
happen that new federal laws and new federal regulations may in time
preempt the field of federal common law of nuisance.” 406 U.S. at 107.

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Those new federal laws arrived in the early 1970s in the form of
major updates to the Clean Water Act5 and the Clean Air Act.6
The Supreme Court subsequently revisited the availability of federal
common law nuisance claims for water pollution in light of the
Clean Water Act. In City of Milwaukee v. Illinois (“Milwaukee II”), the
Court explained that federal common law is only “a necessary
expedient,” “subject to the paramount authority of Congress,” “and
when Congress addresses a question previously governed by a decision
rested on federal common law the need for such an unusual exercise of
lawmaking by federal courts disappears.” 451 U.S. 304, 313-14 (1981)
(quotations omitted). In updating the Clean Water Act, Congress “ha[d]
not left the formulation of appropriate federal standards to the courts,”
but rather had adequately “occupied the field” so as to “supplant federal
common law.” Id. at 317. Under Milwaukee II, then, new congressional
legislation does not add a layer of federal statutory law on top of any

Pub. L. 92-500 (Oct. 18, 1972), 86 Stat. 816, codified as amended at
33 U.S.C. §§ 1251 et seq.
5

Pub. L. 91-604 (Dec. 31, 1970), 84 Stat. 1676, codified as amended at
42 U.S.C. §§ 7401 et seq.
6

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existing federal common law. Instead, the new federal statute defines
the substance of federal law and the federal common law on that subject
ceases to exist.
Milwaukee II presaged the extinction of most federal common law
regarding interstate pollution. New federal statutes would replace
judicially-created federal standards with congressionally-enacted
federal standards. Importantly, however, federal statutes’ displacement
of federal common law does not simultaneously extinguish all state
common law. To the contrary, in International Paper Co. v. Ouellette,
the Supreme Court explained that while the relevant federal common
law was displaced by the Clean Water Act, state common law nuisance
claims for interstate water pollution could be available. 479 U.S. 481,
489 (1987). At that point, with federal common law no longer at issue,
the only question was whether Congress intended the federal statute to
preempt state law claims. See id. at 491.
b. The Clean Air Act defines the substance of federal law
concerning air pollution.
Just as the Clean Water Act supplanted the federal common law
of nuisance for water pollution, so too did the Clean Air Act supplant
the federal common law of nuisance for air pollution. As this Court held
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in Kivalina, that “federal common law cause of action has been
extinguished by Congressional displacement.” 696 F.3d at 857. Thus, as
further explained below, to the extent the district court relied on any
pre-Clean Air Act federal cause of action for interstate air pollution to
support removal, that was error.
In 2004, eight States, the City of New York, and three private
land trusts sued five major power companies in New York federal court,
alleging that defendants’ emissions contributed to global warming and
thereby unreasonably interfered with public rights. See AEP, 564 U.S.
at 418. Plaintiffs sought an injunction setting carbon dioxide emission
caps for each defendant under the federal common law of nuisance and,
in the alternative, state tort law. See id. at 418-19.
The case eventually reached the Supreme Court. The Second
Circuit had ruled that federal common law “governed” these claims,
AEP, 564 U.S. at 419, 429, and the Supreme Court granted certiorari to
address whether plaintiffs “can maintain federal common law public
nuisance claims against carbon-dioxide emitters,” id. at 415.
The parties disputed the historic availability of federal common
law rights, but the Court found that passage of the Clean Air Act had
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rendered that dispute “academic.” AEP, 564 U.S. at 423. Relying
heavily on Milwaukee II, the Court held that “the Clean Air Act and the
EPA actions it authorizes displace any federal common law right to seek
abatement of carbon-dioxide emissions from fossil-fuel fired power
plants.” Id. at 424.
Importantly, the Court held that displacement turned on the
congressional decision to legislate in this area, and not on the content of
federal rights Congress decided to provide. AEP, 564 U.S. at 426. The
Court noted that Congress had not directly established a federal right
to seek abatement—it had delegated authority to EPA to set a federal
standard that would trigger federal rights and remedies. Id. But, the
Court concluded, even if EPA declined to set a standard, “courts would
have no warrant to employ the federal common law.” Id.
In other words, even if federal common law historically recognized
a federal right to abatement, Congress is not bound to preserve it. The
Supreme Court has “always recognized that federal common law is
subject to the paramount authority of Congress.” Milwaukee II, 451 U.S.
at 313. That paramount authority would be hollow unless Congress
could reject prior judicially-created federal common law. Congress
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instead has the power to “strike a different accommodation” than
recognized under federal common law, AEP, 564 U.S. at 422, including
contracting the scope of federal law. Under AEP, then, as under
Milwaukee II, new congressional legislation does not coexist with prior
federal common law—the new statute displaces any federal common
law and that federal common law disappears. Thus, the Clean Air Act
defines the substance of federal law to the exclusion of federal common
law.7
This Court reaffirmed these principles in Kivalina. An Alaskan
village, Kivalina, sued a large group of energy companies in California
federal district court for defendants’ contribution to climate change.
Like the AEP plaintiffs, Kivalina sued under both federal and state
common law. Unlike the AEP plaintiffs, Kivalina did not seek an
injunction limiting emissions, but rather sought compensatory
damages. Kivalina, 696 F.3d at 853-55.

Federal common law may occasionally fill in “statutory interstices” if
required. AEP, 564 U.S. at 421. But AEP makes clear that the
Clean Air Act does not leave a nuisance-sized interstice in federal law
for federal common law to fill. Id. at 423.
7

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This Court applied AEP to dispose of Kivalina’s federal common
law claim for damages. Under AEP, the “federal common law
addressing domestic greenhouse gas emissions has been displaced by
Congressional action.” Kivalina, 696 F.3d at 858. Displacement, this
Court held, means that any “federal common law cause of action has
been extinguished,” and, once the “cause of action is displaced,
displacement is extended to all remedies.” Id. at 857 (emphasis added).
In short, congressional action had extinguished the substance of
federal common law, and displacement of the federal cause of action, as
well as all federal common law remedies, necessarily followed. Id. at
857-58. Like the Supreme Court in AEP, this Court confirmed that new
congressional legislation does not coexist with federal common law—it
completely replaces it.
The district court here relied on Milwaukee I, AEP, and Kivalina
to conclude that federal common law provides a basis to remove a state
law complaint to federal court. See ER 30-31. None of those cases
supports the existence of a federal common law cause of action for
interstate air pollution—much less one that completely preempts all
state law claims for removal purposes. All three cases were filed in
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federal court by plaintiffs asserting a federal cause of action.
Milwaukee I, 406 U.S. at 93; AEP, 564 U.S. at 418; Kivalina, 696 F.3d
at 853. Neither AEP or Kivalina held that climate tort claims must be
governed by federal common law, and neither case ruled on whether
such claims may be authorized by state law. Both Courts held only that
the Clean Air Act had extinguished preexisting federal common law.
AEP, 564 U.S. at 415; Kivalina, 696 F.3d at 853; cf. Milwaukee II,
451 U.S. at 317 (holding Clean Water Act displaced federal common law
recognized in Milwaukee I).
Importantly, neither AEP or Kivalina addressed whether the
Clean Air Act preempts state law climate claims.8 Plaintiffs in both

Displacement and preemption are materially different. AEP, 564 U.S.
at 423-24. Displacement is readily found, because “it is for Congress,
not federal courts, to articulate the appropriate standards to be applied
as a matter of federal law.” Milwaukee II, 451 U.S. at 316-17. In
contrast, when considering preemption, courts “start with the
assumption that the historic police powers of the States were not to be
superseded by the Federal Act unless that was the clear and manifest
purpose of Congress.” Id. at 316; see AEP, 564 U.S. at 423. The Court in
the past sometimes used the terms “preemption” and “displacement”
interchangeably, cf. Milwaukee I, 406 U.S. at 107; AEP, 564 U.S. at 423,
but regardless of the terminology, the Court has always employed a
more stringent standard when considering claims that federal law
preempts state law. E.g., Milwaukee II, 451 U.S. at 316, 317 n.9.

8

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cases asserted state common law claims in the alternative to federal
common law, AEP, 564 U.S. at 418; Kivalina, 696 F.3d at 858 (Pro, J.,
concurring), but neither Court reached those claims at all, AEP, 564
U.S. at 429; Kivalina, 696 F.3d at 858. In short, because the “Clean Air
Act displaces federal common law,” the “availability vel non” of
Plaintiffs’ state law claims here depends on the “preemptive effect of the
federal Act.” AEP, 564 U.S. at 429. As explained below, infra Section II,
the Clean Air Act does not preempt—much less completely preempt—
all state law climate claims.
c. There is no unique federal interest in climate change
that completely preempts state law.
The district court recognized that federal common law is only
“appropriately fashioned” when necessary to protect “uniquely federal
interests.” ER 29. The court then opined that the need for a “uniform”
response to climate change supported fashioning federal common law:
“the transboundary problem of global warming raises exactly the sort of
federal interests that necessitate a uniform solution.” ER 30-31. To the
extent the district court held that addressing climate change—or
addressing it uniformly—is a uniquely federal interest, such that a

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federal court can fashion common law that completely preempts state
law, that holding was error.
Only a “narrow” category of transboundary disputes truly raises
uniquely federal interests: those interstate or international disputes
“implicating the conflicting rights of States or our relations with foreign
nations.” Texas Industries, 451 U.S. at 641. Plaintiffs’ claims here are
brought against five private parties for the tortious promotion of fossil
fuels. These claims do not implicate the conflicting rights of States or
relations with foreign nations.
The actual interstate or international aspects of Plaintiffs’ claims
are mundane. Suits involving parties in different jurisdictions, or
conduct that crosses national or state boundaries, or global branding or
marketing, all have “interstate” or “international” characteristics, but
do not implicate uniquely federal concerns. Cf. O’Melveny & Myers v.
F.D.I.C., 512 U.S. 79, 88 (1994) (“uniformity of law” governing “primary
conduct on the part of private actors” not a significant federal interest).
For example, a coalition of forty different state attorneys general
recently reached a settlement with a Swiss bank concerning the
fraudulent manipulation of LIBOR, “a benchmark interest rate that
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affects financial instruments worth trillions of dollars and has a farreaching impact on global markets and consumers.”9
To be sure, there is a federal interest in addressing climate
change. But it is not a unique interest: “It is well settled that the states
have a legitimate interest in combating the adverse effects of climate
change on their residents.” O’Keeffe, 903 F.3d at 913; accord Rocky
Mountain Farmers Union v. Corey, 913 F.3d 940, 957 (9th Cir. 2019).
And there are federal remedies that should be brought to bear. But
federal remedies are not the exclusive means to address climate change.

Press Release, N.Y. Att’y Gen., A.G. Underwood Announces $68
Million Multistate Settlement With UBS AG (“UBS”) For Artificially
Manipulating Interest Rates (Dec. 21, 2018), https://ag.ny.gov/pressrelease/ag-underwood-announces-68-million-multistate-settlement-ubsag-ubs-artificially; see also, e.g., In re Volkswagen “Clean Diesel” Mktg.,
Sales Practices, & Prod. Liab. Litig., 895 F.3d 597, 603 (9th Cir. 2018)
(affirming approval of $10 billion settlement between consumers and
German company to resolve “a bevy of claims under state and federal
law”); Felix v. Volkswagen Grp. of Am., Inc., No. A-0585-16T3, 2017 WL
3013080, at *1, *6-7 (N.J. Super. Ct. App. Div. July 17, 2017), appeal
denied, 177 A.3d 109 (N.J. 2017) (state law claims against non-resident
car manufacturer for fraudulent marketing not preempted by Clean Air
Act); W. Virginia ex rel. Morrisey v. McKesson Corp., No. 16-1772, 2017
WL 357307, at *1, *9 (S.D. W. Va. Jan. 24, 2017) (state law tort claims
against non-resident, national drug distributor, arising out of tortious
interstate shipments, remanded to state court).
9

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State law remedies are an important component of mitigation efforts.10
In short, the federal interest in climate change is not “unique” and does
not preclude enforcement of state law remedies. Cf. Nat’l Audubon Soc.
v. Dep’t of Water, 869 F.2d 1196, 1203 (9th Cir. 1988) (“[T]here is not ‘a
uniquely federal interest’ in protecting the quality of the nation’s air.
Rather, the primary responsibility for maintaining the air quality rests
on the states.”).

See, e.g., Fourth National Climate Assessment, vol. II, ch. 29, fig. 29.1
Mitigation-Related Activities at State and Local Levels,
https://nca2018.globalchange.gov/chapter/29/. “For example, states in
the Northeast take part in the Regional Greenhouse Gas Initiative, a
mandatory market-based effort to reduce power sector emissions.” Id. at
State of Emissions Mitigation Efforts. This state law initiative has led to
substantial reductions in emissions and corresponding public health
benefits. See, e.g., Abt Associates, Analysis of the Public Health Impacts
of the Regional Greenhouse Gas Initiative, 2009-2014 (Jan. 2017),
https://www.abtassociates.com/insights/publications/report/analysis-ofthe-public-health-impacts-of-the-regional-greenhouse-gas-0.
10

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II.

The Clean Air Act does not completely preempt Plaintiffs’
claims.
Although not reached by the district court, Defendants also

contend that Plaintiffs’ California law nuisance claims are removable
because they are completely preempted by the Clean Air Act. See, e.g.,
ER 207. Defendants are wrong. Complete preemption only applies in
extraordinary cases where a federal statute both preempts state law
claims and provides a replacement federal cause of action. See
Caterpillar, 482 U.S. at 393. No court has ever held that the Clean Air
Act completely preempts state law climate claims. With good reason.
The Act expressly preserves states’ broad traditional authority to
address air pollution under state law. OFA, 331 F.3d at 670-71.
The conclusion that the Clean Air Act does not completely
preempt all state law claims related to climate change is confirmed by
the fact that that Act does not even “ordinarily” preempt all state law
climate claims. Ordinary preemption, as distinct from complete
preemption, comes in three forms: “express,” “field,” and “conflict.”
Murphy, 138 S. Ct. at 1480. As explained below, under any of these
formal tests, the Clean Air Act does not broadly preempt all state law
climate claims either.
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This should not be surprising. First, all preemption is ultimately
based on the Supremacy Clause, which simply provides “that federal
law is supreme in case of a conflict with state law.” Murphy, 138 S. Ct.
at 1479. At bottom, state law climate claims are not generally
preempted because there is no inherent conflict between those claims
and the Clean Air Act. “The central goal of the Clean Air Act is to
reduce air pollution.” OFA, 331 F.3d at 673. State law climate claims do
not conflict with that goal—they complement it.
Second, “[t]he text of the Clean Air Act, in a number of different
sections, explicitly protects the authority of the states to regulate air
pollution.” Exxon Mobil Corp., 217 F.3d at 1254. Among other things:
The Clean Air Act also includes a sweeping and explicit
provision entitled the “Retention of State Authority.” This
section provides that, with the exception of aircraft emissions,
standards for new motor vehicles and . . . [certain] fuel
additives, “nothing in this chapter shall preclude or deny the
right of any State or political subdivision thereof to adopt or
enforce (1) any standard or limitation respecting emissions of
air pollutants or (2) any requirement respecting control or
abatement of air pollution.”
Id. at 1255 (quoting 42 U.S.C. § 7416). The Act also contemplates the
existence of both statutory and common law rights to seek relief from
harmful emissions outside the Act’s framework, and explicitly preserves
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those rights. See 42 U.S.C. § 7604(e) (provision of “citizen suit” right to
enforce Clean Air Act standards shall not restrict “any right” “under
any statute or common law to seek enforcement of any emission
standard or limitation or to seek any other relief”).
a. The Clean Air Act does not expressly preempt all state
law climate claims.
Congress can expressly preempt state law. The Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq., for
example, preempts “any and all State laws insofar as they may now or
hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). The
Clean Air Act contains no comparable provision preempting state laws
that relate to climate change. As noted above, the Act expressly
preserves state law in broad areas.
The Act does contain a few express preemption provisions. For
example, Section 209(a) provides that states may not prescribe “any
standard relating to the control of emissions from new motor vehicles.”

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42 U.S.C. § 7543(a).11 Section 211(c) likewise provides that states may
not impose controls on any “fuel or fuel additive” “for purposes of motor
vehicle emission control.” Id. § 7545(c)(4)(A)12; see also id. § 7573
(preempting direct state regulation of aircraft emissions).
But these express provisions are limited to their terms and do not
preempt even all state law actions relating to fuels or to new motor
vehicle emissions. See, e.g., OFA, 331 F.3d at 670 (California ban on fuel
additive not preempted under Section 211(c) because ban was enacted
to protect state waters and not to regulate emissions); O’Keeffe, 903
F.3d at 917 (Oregon program regulating production and sale of fuels
based on greenhouse gas emissions not preempted under Section
211(c)); In re Volkswagen “Clean Diesel” Mktg., Sales Practices, &
Products Liab. Litig., 349 F.Supp.3d 881, 911 (N.D. Cal. 2018) (state
law claims for deceptive marketing of “clean” emission vehicles not
preempted by Section 209(a)). The presence of these specific preemption

California, however, is expressly exempted from this provision and
allowed to set higher standards in most instances. See 42 U.S.C.
§ 7543(b)(1), (e)(2)(A). And, in general, any other state may choose to
adopt California’s higher standards. Id. § 7507, 7543(e)(2)(B).
11

12

California, again, is generally exempt. See 42 U.S.C. § 7545(c)(4)(B).
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provisions simply highlights that the Clean Air Act does not contain any
provision that broadly preempts state law claims that relate to climate
change.
b. The Clean Air Act does not preempt the field of climate
regulation.
State law can also be preempted “where it regulates conduct in a
field that Congress intended the Federal Government to occupy
exclusively.” OFA, 331 F.3d at 667 (quoting English v. Gen. Elec. Co.,
496 U.S. 72, 78-79 (1990)). No court has ever held that the Clean Air
Act occupies the entire regulatory field relating to air pollution or
climate change. “It is well settled that the states have a legitimate
interest in combating the adverse effects of climate change on their
residents. Air pollution prevention falls under the broad police powers
of the states, which include the power to protect the health of citizens in
the state.” O’Keeffe, 903 F.3d at 913 (citations omitted). In these areas,
there is a strong presumption that state law is not preempted “unless it
was the clear and manifest purpose of Congress to do so.” Exxon Mobil
Corp., 217 F.3d at 1256; OFA, 331 F.3d at 673; see also Wyeth v. Levine,
555 U.S. 555, 565 (2009) (presumption against preemption of state
police powers is a “cornerstone[] of our preemption jurisprudence”);
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Silkwood, 464 U.S. at 248 (states possess “traditional authority to
provide tort remedies”).13
The Clean Air Act does not provide evidence—clear or otherwise—
that Congress intended to preempt all state authority to address
climate change. To the contrary, as discussed above, the Act evidences
clear congressional intent to broadly protect the authority of states to
regulate air pollution. Exxon Mobil Corp., 217 F.3d at 1254-56. “The
first section of the Clean Air Act, entitled ‘Congressional Findings,’
makes clear that the states retain the leading role in regulating matters
of health and air quality.” Id. at 1254 (citing 42 U.S.C. § 7401(a)(3)). In
other sections of the Act, “the primary responsibility of the states is
again reaffirmed.” Id. (citing 42 U.S.C. § 7407, covering state
implementation plans for air quality). The Act further expressly
preserves state authority in “sweeping and explicit” language, id. at

Accord In re Methyl Tertiary Butyl Ether (MTBE) Products Liab.
Litig., 725 F.3d 65, 96 (2d Cir. 2013) (“Imposing state tort law liability
for negligence, trespass, public nuisance, and failure-to-warn—as the
jury did here—falls well within the state’s historic powers to protect the
health, safety, and property rights of its citizens. In this case, therefore,
the presumption that Congress did not intend to preempt state law tort
verdicts is particularly strong.”).
13

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1255 (citing 42 U.S.C. § 7416), and then expressly preserves the right of
“any person” to enforce those rights outside of the Clean Air Act, see
42 U.S.C. § 7604(e). The text and structure of the Act forecloses any
inference that Congress intended federal authority to be exclusive.
Exxon Mobil Corp., 217 F.3d at 1254 (“The Supreme Court has given
substantial weight in preemption analysis to evidence that Congress
intended to preserve the states regulatory authority.”).14 Cf. Wyeth,
555 U.S. at 575 (the case for preemption is “particularly weak” where
Congress indicates awareness of the operation of state law).
In short, nothing in the Clean Air Act demonstrates a
congressional intent to exclusively occupy the field of climate
regulation—or, for that matter, the field of promotion of fossil fuels,
which is not addressed by the Act at all.

Congressional intent to exclusively occupy a field of regulation can
sometimes be inferred from the scope of a statute. Altria Grp. v. Good,
555 U.S. 70, 76 (2008). But simply labeling a statute’s scope
“comprehensive” does not suffice. See, e.g., Wis. Pub. Intervenor v.
Mortier, 501 U.S. 597, 613 (1991). The Clean Air Act is a prime
example: it “establishes a comprehensive program for controlling and
improving the United States’ air quality,” but it does so through both
“state and federal regulation.” Natural Res. Def. Council, Inc. v. U.S.
E.P.A., 638 F.3d 1183, 1185 (9th Cir. 2011).
14

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c. State law climate claims do not inherently conflict with
the Clean Air Act.
Conflict preemption exists “where ‘compliance with both state and
federal law is impossible,’ or where ‘the state law stands as an obstacle
to the accomplishment and execution of the full purposes and objectives
of Congress.’” ONEOK, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1595 (2015)
(quoting California v. ARC America Corp., 490 U.S. 93, 100-01 (1989)).
“Impossibility preemption is a demanding defense.” Wyeth, 555
U.S. at 573. It is not impossible, for example, to comply with both
“minimum federal standards” and “more demanding state regulations.”
See Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141-42
(1963); see also Sprietsma v. Mercury Marine, 537 U.S. 51, 65 (2002);
Patriotic Veterans, Inc. v. Indiana, 736 F.3d 1041, 1049 (7th Cir. 2013)
(“The fact that a state has more stringent regulations than a federal law
does not constitute conflict preemption.”). The Clean Air Act generally
imposes minimum federal standards and expressly contemplates that
states can adopt more demanding standards in many areas. See, e.g.,
42 U.S.C. §§ 7416, 7604(e); Exxon Mobil Corp., 217 F.3d at 1255;
Merrick v. Diageo Americas Supply, Inc., 805 F.3d 685, 693 (6th Cir.
2015) (“For one thing, the Clean Air Act expressly reserves for the
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states—including state courts—the right to prescribe requirements
more stringent than those set under the Clean Air Act.”). In other
words, even if state law imposes additional or higher standards—such
as through tort duties—it is generally possible to meet those standards
and also comply with the Act.
Nor are additional state law duties likely to stand as an obstacle
to achieving the purposes of the Clean Air Act. “The central goal of the
Clean Air Act is to reduce air pollution.” OFA, 331 F.3d at 673; see also
Exxon Mobil Corp., 217 F.3d at 1255 (the Act “force[s] the states to do
their job in regulating air pollution effectively”). Only if state law has
the effect of increasing air pollution is it likely to conflict with the Act.
Nothing in the Clean Air Act evinces a congressional concern with
reducing pollution too much.15 Further, courts should be slow to imply
ancillary purposes not clearly expressed in federal legislation or “to
entertain hypothetical conflicts” with state law. Chevron U.S.A., Inc. v.
Hammond, 726 F.2d 483, 486, 488, 499 (9th Cir. 1984) (federal

In any event, on their face the instant suits do not seek to enjoin
emissions. E.g. ER 62 ¶ 11; ER 118-19 (“Relief Requested”). Plaintiffs
seek redress for Defendants’ tortious promotion of fossil fuels. The
Clean Air Act does not address this subject.
15

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allowance for some low-oil ballast discharges from maritime tankers did
not preempt state complete ban on discharges); cf., e.g., Stengel v.
Medtronic Inc., 704 F.3d 1224, 1231-32 (9th Cir. 2013) (where state-law
duty parallels federal-law duty, state imposition of additional damages
remedy does not conflict); OFA, 331 F.3d at 673 (state law that had the
effect of increasing gasoline prices did not conflict with Clean Air Act).
Broadly speaking, the Clean Air Act directs EPA to establish
minimum federal standards for certain air pollutants and certain
sources of air pollution. See, e.g., AEP, 564 U.S. at 424-25 (describing
regulation of stationary sources under Clean Air Act Section 111). A
state law that required a source to emit pollution in violation of federal
standards would likely be preempted. But a federal pollution standard
does not necessarily imply a federally guaranteed right to pollute up to
that standard. Accord, e.g., Chinatown Neighborhood Ass’n v. Harris,
794 F.3d 1136, 1142 (9th Cir. 2015) (federal shark fishing allowance did
not imply mandate to harvest; accordingly, state law restricting shark
fin possession did not conflict); Wyeth, 555 U.S. at 583 (Thomas, J.,
concurring) (FDA approval of drug label “does not give drug
manufacturers an unconditional right to market their federally
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approved drug at all times”). In other words, state law that has the
effect of reducing pollution is unlikely to conflict with the Clean Air Act.

CONCLUSION
The Court should reverse the district court’s order on removal and
direct that it order these cases remanded to state court.

Dated: March 20, 2019

Respectfully submitted,
/s/ Peter Huffman
Peter Huffman
Natural Resources Defense Council
1152 15th Street NW, Suite 300
Washington, D.C. 20005
phuffman@nrdc.org
(202) 289-2428
Ian Fein
Natural Resources Defense Council
111 Sutter Street, 21st Floor
San Francisco, CA 94104
ifein@nrdc.org
Counsel for Amicus Curiae
Natural Resources Defense Council

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CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(g),
I certify that:
This brief complies with Rule 29(a)(5)’s type-volume limitation
because it contains 6,496 words (as determined by the Microsoft Word
word-processing system used to prepare the brief), excluding the parts
of the brief exempted by Rule 32(f).
This brief complies with Rule 32(a)(5)’s typeface requirements and
Rule 32(a)(6)’s type-style requirements because it has been prepared in
a proportionately spaced typeface using the Office 365 version of
Microsoft Word in 14-point Century Schoolbook font.
/s/ Peter Huffman
Peter Huffman

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CERTIFICATE OF SERVICE
I hereby certify that on March 20, 2019, I caused the foregoing to
be filed electronically with the Clerk of Court for the United States
Court of Appeals for the Ninth Circuit using the appellate CM/ECF
system. Participants in this case are registered CM/ECF users and
service will be accomplished by the appellate CM/ECF system.
/s/ Peter Huffman
Peter Huffman

35